[Federal Register Volume 66, Number 128 (Tuesday, July 3, 2001)]
[Proposed Rules]
[Pages 35113-35115]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-16669]
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DEPARTMENT OF LABOR
Occupational Safety and Health Administration
29 CFR Part 1904
[Docket No. R-02A]
RIN 1218-AC00
Occupational Injury and Illness Recording and Reporting
Requirements
AGENCY: Occupational Safety and Health Administration (OSHA), U.S.
Department of Labor.
ACTION: Proposed delay of effective date; request for comments.
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SUMMARY: The Occupational Safety and Health Administration (OSHA)
issued a final rule on Occupational Injury and Illness Recording and
Reporting Requirements (66 FR 5916, January 19, 2001), which is
scheduled to become effective on January 1, 2002. Following a careful
review conducted pursuant to White House Chief of Staff Andrew Card's
memorandum (66 FR 7702), the Agency has determined that all but a few
of the provisions of the final rule should take effect as scheduled.
OSHA has also determined that it will reconsider the provisions in
the final rule for: recording occupational hearing loss based on the
occurrence of a Standard Threshold Shift (STS) in hearing acuity
(Section 1904.10); and defining ``musculoskeletal disorder'' (MSD) and
checking the column on the OSHA 300 Log identifying a recordable MSD
(Section 1904.12). Accordingly, OSHA proposes to delay the effective
date of Sections 1904.10 and 1904.12 until January 1, 2003. Employers
should read carefully Section II. of this document, Effect of Proposal
Delay on Employer Recordkeeping Obligations in Calendar Year 2002, to
understand what their recordkeeping obligations would be during the
period January 1, 2002 through January 1, 2003 if the proposed delay
takes effect. OSHA is also asking for comment on the appropriate
criteria for recording hearing loss cases. See Section III.
DATES: Written comments must be postmarked by September 4, 2001.
ADDRESSES: Comments are to be submitted in writing in triplicate. All
comments shall be submitted to: Docket Officer, Docket No. R-02A,
Occupational Safety and Health Administration, Room N-2625, U.S.
Department of Labor, 200 Constitution Avenue, NW., Washington, DC
20210, telephone (202) 693-2350 (OSHA's TTY number is (877) 889-5627).
Comments of 10 pages or less may be faxed to (202) 693-1648. You may
also submit your comments electronically through OSHA's home page at
www.osha.gov. Please note that you may not attach materials such as
studies or journal articles to your electronic statement. If you wish
to include such materials, you must submit three copies to the OSHA
Docket Office at the address listed above. When submitting such
materials to the OSHA Docket Office, you must clearly identify your
electronic statement by name, date, and subject, so that we can attach
the materials to your electronically submitted statement.
FOR FURTHER INFORMATION CONTACT: Jim Maddux, Occupational Safety and
Health Administration, U.S. Department of Labor, Directorate of Safety
Standards Programs, Room N-3609, 200 Constitution Avenue, NW.,
Washington, DC 20210. Telephone (202) 693-2222.
SUPPLEMENTARY INFORMATION: Because OSHA's final recordkeeping rule was
published on January 19, 2001, with an effective date of January 1,
2002, it was subject to the regulatory review required by the Andrew
Card memorandum. The Agency has carefully considered the rulemaking
record and the submissions of interested parties, and has had several
meetings with business and labor representatives. As a result of this
process, the Secretary has determined that the final recordkeeping rule
should be implemented in large part, on January 1, 2002, as scheduled.
The final rule is the result of an effort begun in the 1980s, involving
businesses, labor organizations, health professionals and others, to
improve the quality of the injury and illness records maintained under
the Occupational Safety and Health Act. The new rule simplifies the
recordkeeping process by making the record requirements more logical
and coherent, by explaining the requirements in plain language, by
consolidating the interpretations and guidance previously found in a
host of secondary sources, and by providing new recordkeeping forms
that are easier to understand and complete. However, the Agency's
review has identified grounds for reconsidering two elements of the
final rule, and for delaying the effective date of the requirements
related to these elements, as explained below.
I. Why OSHA Is Proposing To Delay the Effective Date of the Final
Rule Requirements on Hearing Loss and the MSD Definition and Column
A. Recording occupational hearing loss cases: Section 1904.10 of
the final rule requires employers to record, by
[[Page 35114]]
checking the ``hearing loss'' column on the OSHA 300 Log (Log), a case
in which an employee's hearing test (audiogram) reveals that a Standard
Threshold Shift (STS) in hearing acuity has occurred. An STS is defined
as ``a change in hearing threshold, relative to the most recent
audiogram for that employee, of an average of 10 decibels (dB) or more
at 2000, 3000 and 4000 hertz in one or both ears.'' Section
1904.10(b)(1). The final rule itself does not require testing of
employees' hearing. However, OSHA's occupational noise standard (29
C.F.R. 1910.95) requires employers in general industry to conduct
periodic audiometric testing of employees when employees' noise
exposures are equal to, or more than, an 8-hour time-weighted average
85dB. If such testing reveals that an employee has sustained hearing
loss equal to an STS, the employer must take protective measures,
including requiring the use of hearing protectors, to prevent further
hearing loss.
The current recordkeeping rule, which remains in effect until
January 1, 2002, contained no specific threshold for recording hearing
loss cases. In 1991, OSHA issued an enforcement policy on the criteria
for recording occupational hearing loss, to remain in effect until new
criteria were established by rulemaking. The 1991 policy stated that
OSHA would cite employers for failing to record work related shifts in
hearing of an average of 25dB or more at 2000, 3000, and 4000 Hertz in
either ear.
One of the major issues in the recordkeeping rulemaking was to
quantify the level of hearing loss that should be recorded as a
``significant'' health condition. This was critical because OSHA
determined that minor or insignificant health conditions should no
longer be recordable. See, e.g., 66 FR 5931. OSHA proposed a
requirement to record hearing loss averaging 15dB at 2000, 3000 and
4000 Hertz in one or both ears. The agency asked for comment on several
alternative criteria, including, 10, 20 and 25dB. The final rule used
the STS criterion of 10dB instead of the proposed 15dB level.
In selecting an STS as the appropriate criterion for recording
hearing loss, OSHA relied heavily on evidence submitted by the
Coalition to Preserve OSHA and NIOSH and Protect Workers' Hearing that
a 10dB loss in hearing acuity represents a serious health problem.
``OSHA [was] particularly persuaded by the Coalition's argument that
`An age-corrected STS is a large hearing change that can affect
communicative competence' because an age-corrected STS represents a
significant amount of cumulative hearing change from baseline hearing
levels.'' 66 FR 6008. Based on this and other evidence, OSHA found that
an STS ``represents a non-minor injury or illness of the type Congress
identified as appropriate for recordkeeping purposes.'' 66 FR 6009.
Following publication of the final rule in January 2001, OSHA
received submissions from interested parties criticizing the finding
that an STS represents a significant health condition. Exhibits 1-2, 1-
3, 1-4, 1-5, 1-6, 1-7. These parties argue that an STS is not
necessarily considered a serious health problem by the medical
community, by State workers compensation systems, or by the
occupational noise standard (29 CFR 1910.95). The American Iron and
Steel Institute noted that, ``According to the AMA, a person has
suffered material impairment when testing reveals a 25dB average
hearing loss from audiometric zero at 500, 1000, 2000, and 3000
hertz.'' AISI and other commenters assert that an STS is merely a
precursor event indicating the need for follow-up actions, not a
material health impairment standing alone.
OSHA has reviewed the record and agrees that reconsideration of the
criteria for recording hearing loss is warranted. There is evidence in
the record suggesting that an STS can constitute a serious health
problem for individuals with pre-existing hearing loss. See 66 FR 6008
(``For an individual with pre-existing high frequency hearing loss on
the baseline, STS usually involves substantial progression into the
critical speech frequencies.'') There is also evidence that an STS is
not necessarily a serious condition, and some commenters have
questioned whether it is even a reliable criterion under real-world
testing conditions. See, e.g., Exhibit 1-2. Finally, NIOSH notes in its
Criteria for a Recommended Standard--Noise Exposure, ``the incipient
permanent threshold shift may manifest itself with the same order of
magnitude as typical audiometric measurement variability; about a 10-dB
change in hearing thresholds.'' In view of this uncertainty, OSHA
believes that the record should be reopened to permit consideration of
additional medical and other relevant evidence, and to explore
alternative approaches. For example, Organization Resources Counselors,
Inc. (ORC) in its post-promulgation submissions urged the Agency to
consider a sliding scale which would take account of an individual's
existing level of impairment in determining whether further
occupational hearing loss warrants recording. (Exhibits 1-6, 1-7).
ORC's suggested approach, which was not addressed in the rulemaking,
also deserves careful consideration.
In light of the decision to reconsider the 10dB criterion, OSHA is
proposing to delay the effective date of Section 1904.10 until January
1, 2003, and to remove the ``Hearing loss'' column from the version of
the Log to be used during calendar year 2002. OSHA believes that this
proposed action is appropriate for several reasons. If OSHA decides to
change the hearing loss criterion beginning in 2003, records of hearing
loss cases based on the 10dB level for 2002 will be of little value
since they could not be compared to records maintained either under the
former rule's 25dB level or any new level effective in 2003. On the
other hand, continuing the 25dB recording requirement for 2002 will
yield data comparable to that for earlier years even if OSHA implements
a new requirement for 2003. Furthermore, the proposed delay of the
effective date would avoid the confusion and additional paperwork
burden that would result if employers were required to implement the
10dB requirement for 2002, only to change over to a new requirement in
2003. These factors appear to outweigh any potential benefit to be
gained by permitting Section 1904.10 to become effective while OSHA is
reconsidering the 10dB criterion. If implementation of Section 1904.10
is delayed as proposed in this document, OSHA will provide new forms to
be used for calendar year 2002 that do not contain a ``Hearing loss''
column.
B. Defining an MSD and checking the MSD column: Section 1904.12 of
the final rule states that if an employee experiences a recordable
musculoskeletal disorder (MSD), the employer must record it on the OSHA
Log and must check the MSD column. For recordkeeping purposes, the rule
defines MSDs as disorders of the muscles, nerves, tendons, ligaments,
joints, cartilage and spinal discs that are not caused by slips, trips,
falls, motor vehicle accidents or other similar accidents (see Section
1904.12(b)(1)). The Section also explains that in determining whether
an MSD is recordable, the employer must use the same criteria that
apply to other injuries or illnesses. To be recordable, the disorder
must be work-related, must be a new case, and must meet one or more of
the general recording criteria. Section 1904.12(b)(2) states that
``[t]here are no special criteria for determining which musculoskeletal
disorders to record,'' and refers the reader to other sections of the
rule in which the basic recording criteria are found.
[[Page 35115]]
OSHA's purpose in including an MSD column on the Log was to gather
data on ``musculoskeletal disorders'' as that term is defined in
Section 1904.12. Following Congressional disapproval of OSHA's
ergonomics standard (PL 107.5, Mar. 20, 2001), the Secretary announced
that she intends to develop a comprehensive plan to address ergonomic
hazards and scheduled a series of forums to consider basic issues
related to ergonomics (66 FR 31694, 66 FR 33578). One of the key issues
to be considered in connection with the Secretary's comprehensive plan
is the approach to defining an ergonomic injury.
Based on these developments, the Secretary believes that it is
premature to define an MSD for recordkeeping purposes. Any definition
of ``musculoskeletal disorder'' or other term for soft tissue injuries
in the recordkeeping rule should be informed by the views of business,
labor and the public health community on the problem of ergonomic
hazards in the workplace, which the Secretary's forums are intended to
elicit. Furthermore, to require employers to implement a new definition
of MSD while the Agency is considering the issue in connection with the
comprehensive ergonomics plan could create unnecessary confusion and
uncertainty. Therefore, OSHA is proposing to delay the effective date
of Sec. 1904.12. Accordingly, the Log to be used for calendar year 2002
would not contain a definition for MSD or an MSD column. When the
Department has progressed further in developing its comprehensive
approach to ergonomic hazards, it will be in a better position to
consider how employers will be required to report work-related
ergonomics injuries.
This proposed action does not affect the employer's obligation to
record all injuries and illnesses that meet the criteria set out in
Sections 1904.4-1904.7, regardless of whether a particular injury or
illness meets the definition of MSD found in Section 1904.12. Employers
will be required to record soft-tissue disorders, including those
involving subjective symptoms such as pain, as injuries or illnesses if
they meet the general recording criteria that apply to all injuries and
illnesses. The proposed delay of the effective date of Section 1904.12
does not affect this basic requirement. It simply means that employers
will not have to determine which injuries should be classified under
the category of ``MSDs'' or ``ergonomic injuries'' during the calendar
year 2002.
II. Effect of the Proposed Delay of the Effective Date on
Employer's Recordkeeping Obligations in Calendar Year 2002
A one-year delay of the effective date of the specified
recordkeeping provisions would have the following effect on an
employer's recordkeeping obligations during the 2002 calendar year:
Hearing loss cases: Employers would continue to record work-related
shifts of an average of 25 dB or more at 2000, 3000, and 4000 hertz
(Hz) in either ear on the OSHA 300 Log. When a recordable hearing loss
occurs, the audiogram indicating the hearing loss would become the new
baseline for determining whether future additional hearing loss by the
individual must be recorded. Employers would check either the
``injury'' or the ``all other illness''column, as appropriate.
Soft-tissue disorder: Employers would record disorders affecting
the muscles, nerves, tendons, ligaments and other soft tissue areas of
the body in accordance with the general criteria in Sections 1904.4-
1904.7 applicable to any injury or illness. Employers would also treat
the symptoms of soft-tissue disorders the same as symptoms of any other
injury or illness. Soft-tissue cases would be recordable only if they
are work-related (Sec. 1904.5), are a new case (Sec. 1904.6), and meet
one or more of the general recording criteria (Sec. 1904.7). Employers
would check either the ``injury'' or the ``all other illness'' column,
as appropriate.
III. Issues for Public Comment
OSHA particularly invites comment on the following issues. Issue 1.
What is the appropriate criterion for recording cases of occupational
hearing loss? OSHA is particularly interested in comments on the
advantages and disadvantages of various hearing loss levels, including
10, 15, 20 and 25 dB, on alternative approaches such as the use of a
sliding scale in which smaller incremental shifts would be recordable
for employees with significant pre-existing hearing loss, and on the
frequency of ``false positive'' results or other errors in audiometric
measurements associated with each of these levels and approaches. Issue
2. What is the variability of audiometric testing equipment and how
should this variability be taken into account, if at all, in the
recordkeeping rule? Issue 3. What is the appropriate benchmark against
which to measure hearing loss, e.g., the employee's baseline audiogram,
audiometric zero, or some other measure? Issue 4. Should the
recordkeeping rule treat subsequent hearing losses in the same employee
as a new case for recording purposes?
Paperwork Reduction Act
On January 22, 2001, the Office of Management and Budget (OMB)
received OSHA's request under the Paperwork Reduction Act of 1995 for
approval of the information collection requirements in the final
recordkeeping rule. This request for approval was withdrawn by the
Agency on March 26, 2001, before OMB acted on it. OSHA will resubmit a
request for OMB approval of the information collection requirements in
the final rule, including appropriate changes in such requirements
resulting from this proposal.
Regulatory Flexibility Certification
Pursuant to the Regulatory Flexibility Act (5 U.S.C. 601), the
Acting Assistant Secretary certifies that the proposed rule will not
have a significant adverse impact on a substantial number of small
entities.
Executive Order
This document has been deemed significant under Executive Order
12866 and has been reviewed by OMB.
Authority
This document was prepared under the direction of R. Davis Layne,
Acting Assistant Secretary for Occupational Safety and Health. It is
issued under Section 8 of the Occupational Safety and Health Act (29
U.S.C. 657), and 5 U.S.C. 553.
Issued at Washington, DC this 28th day of June, 2001.
R. Davis Layne,
Acting Assistant Secretary of Labor.
[FR Doc. 01-16669 Filed 6-29-01; 9:53 am]
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